Strengthening Constitutional Self-Government

No Left Turns

Justice Sotomayor?

Here’s the WaPo story. Beyond the fact that she’s a Yankees fan (reason enough to oppose her in my books), there’s the fact that she participated at the appellate level in the Ricci case.

For instant reactions, go to NR’s Bench Memos. I’m going to try to find some time to read some of her appellate opinions.

Discussions - 1 Comment

Just got done reading 80 pages of the recently decided Brown v. Plata case and thought it may provide insight into the shaping of the court with its new members.

To anyone interested in getting an early glimpse of the difference between Obama/Biden-appointed Justices Keegan and Sotomayor will have on the court as opposed to those that may have been appointed by McCain/Palin, I proffer this ruling would be impossible without them. You also must read Scalia's and Roberts's dissents, because they unveil the impeding ideological showdown that will divide and politicize our Supreme Court in the foreseeable future, which should be exciting and troubling for former law school drop outs that strangely enjoy reading 80 pages of opinions.

The 5-4 majority opinion, delivered by Kennedy is an excoriating view of the facts submitted at trial finding California's prison system is violating the 8th amendment rights of its mentally and physically ill prisoners because of horrific overcrowding and the resulting inadequate medical care. It shows a sensitivity to prisoners that I do not think can be tolerated by Scalia and Roberts, and supports a three judge panel's orders to radically decrease California's population by ordering them to reduce to only 137.5% capacity. It may also be a very clever way to lay the path for his opinion when the court is forced to decide on federal health care bills, because he and Roberts want to be very dismissive of the idea that not providing medical care to these captive prisoners could constitute an 8th amendment challenge.

As much as I may think Scalia is the anti-christ, he is a really talented writer when it comes to distilling the true essence of his opinion on a case. If he only had a soul not owned by right wing corporate America, he would be a truly great justice, and perhaps he is, because of his adversarial role. He makes a big deal out of the fact that the remedy of releasing prisoners may possibly benefit those outside the class of mentally or physically ill prisoners, and even challenges that any individual harms are shown, despite Kennedy's ad nauseam discussion of the noxious treatment of prisoners presented during ten days of trial. I think, under this same reasoning, he could disagree with Brown v. Board of Education, arguing that letting children of color for whom no harm has been proven, to benefit from the means instituted to alleviate the harm to the named plaintiffs.

Scalia's emotional opinion is very interesting and gives a lucid view of his fear of Article III Judges performing the calculations and judgements typically reserved for administrators. He forces the issues of structural injunctions and asks us to define more clearly what “facts” lower courts can certify, as opposed to policy recommendations, all things which I find myself reluctantly agreeing with him on. Then, getting back to the real issue at hand, and the reason I could not join his dissent, he says “...And many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym,”, concerning the release of the inmates. I think here he throws out a hint of his real problem with this order—that it makes prisoners' lives just a little less miserable to give them adequate access to medical and mental healthcare professionals.

Alito's dissent is basically disagreeing with the lower court's findings (a judicial no-no) and he even hints that a decree declaring California's prison system unsafe and inadequate may lead to a precedent whereby a city that has inadequate hospitals could be held to the same 8th amendment challenge, apparently ignoring the stark difference between being incarcerated and not being incarcerated, and the burden the former places upon a prison in taking care of its citizens.

I do appreciate Scalia's discussion of some important issues, and I think he perforates weak areas in Kennedy's opinion, especially the narrowly-tailored requirement under the PRLA. However, I also appreciate Justice Kennedy's desire to distill the case to its real question: Was the lower court correct in finding an Eighth Amendment Violation and did it act within the statute to fairly adjudicate the solution to alleviate those violations? I agree with Kennedy and the narrow majority in saying yes. I also think the entire argument would have been removed from Scalia had the designated panel been three ordinary citizens, and not judges. Then, it would not have triggered his “anti-activist judges” radar, and his eloquent attack dog of a florid dissent would have stayed in its cage.

Sotomayor and Keegan are still feeling their way around the court, and their ideologies are burgeoning. I think the real power of their presence may be allowing Kennedy to find strength as the shepherd of these new members, Having followers, he may be more likely to veer down the left path when given a difficult choice.
-Bubba Brownley

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